R v Jones

[2001] QCA 412

[2001] QCA 412

COURT OF APPEAL

McPHERSON JA
CHESTERMAN J
DOUGLAS J

CA No 186 of 2001

THE QUEEN

v.

DAVID SIMEON JONES  Applicant

BRISBANE

..DATE 27/09/2001

JUDGMENT

CHESTERMAN J:  On 6 June 2001 the applicant was convicted in the District Court at Gympie of assault occasioning bodily harm.  He was sentenced to 18 months' imprisonment. 

On 18 July this year the applicant applied for an extension of time within which to apply for leave to appeal against sentence.  The application was 12 days late.  The delay is explained on the basis that the applicant had difficulty communicating with his solicitors after conviction.

The application for extension of time states that he was taken straight from the Court where he was sentenced to prison and was unable to speak to his legal advisers nor could he contact them from the prison.  His wife attempted to obtain papers necessary for lodging an appeal or an application for leave to appeal against sentence but was told, strangely enough, that those who had possession of the papers would give them only to an applicant and no one on behalf of an applicant.  An attempt to contact Legal Aid via a video link from the prison was unsuccessful when the link went down. 

Mr Meredith, who appears for the Crown, expresses some doubt about the accuracy of the explanation.  The applicant told us today that he had a statutory declaration signed by his wife deposing to the truth of the explanation.  It does not seem to matter much.  The delay is short and if the applicant had an arguable case for appealing against sentence I would be inclined to extend time.  The question is whether there is an arguable ground for complaining about the sentence imposed.

The offence was a serious one.  It occurred on 8 October 2000 and involved a degree of violence.  The complainant was a man who was indebted to the applicant in the sum of $550.  He promised to repay the sum by weekly instalments of $50 but has made no repayments.  The applicant wished to recover some or all of his money.  To that end he went to a house where the complainant was staying.  It was not, it seems, the complainant's own home but it was at someone's home.

The applicant armed himself with a steel pipe a little over half a metre long.  He went to the home where the complainant was.  The complainant seeing him and seeing him armed attempted to prevent the applicant gaining entry into the house.  The applicant, nevertheless, obtained entry into the house and struck the complainant on three occasions causing considerable pain.  One of the blows broke the complainant's arm.

The complainant attempted to defend himself by shielding himself with a chair while the applicant continued to attempt to strike him.  Eventually the complainant fled from the house and was chased through the neighbouring streets of Gympie by the applicant still armed with the steel bar.  Residents called the police who apprehended the applicant.

He has a criminal history though not for any offence of violence.  He has convictions for drug offences and for one offence of sexual misconduct involving children for which he was sentenced to two years' imprisonment to be suspended after serving nine months.

In the circumstances of deliberate and sustained violence which was offered by the applicant to the complainant, it does not seem to me that the sentence of 18 months' imprisonment can be criticised at all.  It does not seem to me to be excessive.  I would think that there is no worthwhile prospect of an appeal against sentence succeeding.

For that reason I would refuse leave to extend time within which to bring an application.

McPHERSON JA:  I agree.  The applicant's victim, in this case, does not seem to have been an especially deserving individual.  He evidently has a criminal record of quite an extensive kind and he is a person who, it would seem, in this instance did not honour his promise to pay a debt to the applicant which arose in circumstances in which it may be thought that the applicant had made some sacrifice in lending the money.  The victim is, therefore, not someone for whom one would rush to feel great sympathy.

On the other hand, however, the applicant's entry into the private residence where the victim was present was forcible.  He went armed and he proceeded to use the steel bar that he was carrying in such a way as to injure the victim and break his wrist.  He then pursued him through the streets of Gympie carrying the bar and threatening him as they went.

In all the circumstances, my impression is that a sentence of 18 months' imprisonment for an offence which involved all these features is by no means to be considered excessive, and that, if time were extended to enable the application or appeal against sentence to be pursued, it would not be successful.  In the result, therefore, I agree that the application should be dismissed.

DOUGLAS J:  I agree with the reasons of Mr Justice Chesterman and Mr Justice McPherson.

McPHERSON JA:  The order is that the application for leave to extend time within which to appeal against sentence is dismissed.

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